Defra responds to consultation on transfer

Regulations that will transfer private drains and sewers to water and sewerage companies have been laid before Parliament. But the water industry awaits important details in guidance. Marie-Claire Kidd reports.

Following their consultation last year, Defra and the Welsh Assembly Government said it would make 'a number of changes' to the draft regulations. Its consultation response, published this March, details just one, regarding exclusion of Crown lands.
After affected bodies said they would prefer to be included with an option to opt out, the Government changed the regulations accordingly. "The overall result should be the same but this will reduce the administrative burden for both Crown bodies and the WaSCs," says Defra.
The final draft of the regulations, which was laid before parliament on April 28, includes a further change. It makes provision for 'supplementary schemes' covering a loophole around new drains and sewers built between July 1, when the regulations will be enacted, and October 1, when transfer takes place.
David Strang, legal and policy adviser to WaterUK, which represents British WaSCs, says the Government deserves credit for the update. "It's helpful," he says, "and they've delivered what they said they would, on time."
Previously, WaterUK had expressed serious concerns over the lack of detail available to WaSCs, which are expected to deliver massive changes by October 1.
Mr Strang said: "It's extraordinary that we're still in this position when this has been under discussion for a decade. It's not satisfactory that they've left it to the last moment. It's disappointing."
He added that things had moved quickly in recent weeks, with the regulations laid before Parliament on April 28 and guidance being circulated to the industry on May 13. Defra says: "We're still working on drafts of the guidance, which are being discussed with water companies. Ministers will then need to sign off a final draft."
The guidance will clarify issues including the potential for an individual or a minority of owners to block transfer of a drainage system and the thorny topic of curtilage. Water UK has been lobbying for a clear definition of curtilage but, in its consultation response document, Defra concluded any attempt to define it in the regulations would be flawed.
Sites the Government considers to comprise single curtilage include caravan parks, council traveller sites, airports, ports and railway stations. They will not be subject to the new regulations.
In its consultation response, the Government acknowledged that park home and caravan park residents may not be able or willing to pay for repairs. There were also concerns over former public sector housing sites, not only because some would be considered Crown property, but also because they could be interpreted as having a single curtilage. Defra has also acknowledged concerns over councils' powers to step in where there is a problem with a transferred sewer. It responded by saying: "Local authorities' powers have never been applicable to the public sewerage system, in respect of the maintenance of which sewerage undertakers have statutory duties and operate to statutory minimum standards of service in addition to reporting standards set by
the industry economic regulator, Ofwat."
Chartered Institute of Environmental Health president Stephen Battersby, who leads the institute's training on drains, says environmental health departments will have powers post transfer. He says that case law indicates that, if premises are prejudicial to health as the result of flooding by sewage, although sewers cannot be in such a state as to be prejudicial to health, the premises can, and WaSCs could be liable for existence of the statutory nuisance.
He adds: "It's reasonable [for Environmental Health Practitioners] to have concerns. While transfer will have benefits in that time won't be wasted disputing the relative responsibilities, it shouldn't be taken, as Defra sometimes does, that the water and sewerage undertakers will also act promptly to deal with a problem.
"In my view there should at least be an agreed code or memorandum of understanding that will enable local authorities to step in to deal with a problem that isn't dealt with adequately by the WaSC, and recharge the WaSC."
The consultation also acknowledged the need for special provision for managing difficulties caused by pitch fibre pipes. Sam Warren of UK Drainage Protocol, which works with councils to solve complex drainage cases, says: "We don't think it's been fully considered. The nature of pitch fibre pipe work is there are nearly always multiple points of damage within drainage runs.
"It could be expensive for WaSCs attempting piecemeal repairs without a planned approach. It could also be inconvenient and confusing for homeowners. We handled a repair project that involved 90 properties and cost nearly £500,000, because of the state of the pitch fibre pipe work."
Drainage contractors lobbying for business protection are also waiting patiently for guidance. In its consultation response, Defra says: "The way in which WaSCs contract for maintenance and repair work following transfer is largely a matter for them.
"The Government has raised with WaterUK the concerns of the drainage contractors and will consider whether encouragement could be offered to WaSCs on procurement in its guidance."
Defra was unable to say when it will release the guidance, but industry insiders are hopeful that it will be soon. David Strang says: "While the process has been delayed, a lot has happened in the last few days and we have a clearer idea of where it is all going." n

http://archive.defra.gov.uk/corporate/consult/private-sewers/
http://www.legislation.gov.uk/ukdsi/2011/9780111510933/contents
*Guidance on the transfer of drains and sewers is subject to change. The information above was correct and up to date at the time of going to press